Parties to the
Dispute
SPECIAL BOARD OF ADJUSTMENT N0. 936

 Brotherhood of Maintenance of Way Employes

Norfolk and Western Railway Company

(Lake Region)


STATEMENT OF CLAIM
(1) The dismissal of Machine Operator C. P. Stark, Laborer T. E. Buckley and the ninety (90) day suspension assessed Laborer S. E. Esposito for alleged use of narcotics while on duty was without just and sufficient cause, on the basis of unproven and disproven charges and in violation of the Agreement. [File Nos. MW-BVE-81-21; MW-BVE-80-27; MW-BVE-81-20j.

 (2) The Claimants shall be allowed the remedy prescribed in Rule 22(e).

 OPINION OF TfiE BOARD
Claimants were employed by Carrier Rail Gang R-2 working in the vicinity of Muncie and Eaton, Indiana. On June 24, 1981, Carrier Police conducted an unannounced inspection of the Camp Cars used by Rail Gana. R-2. A variety of narcotics and drug paraphernalia were found. Subsequent to this inspection, Carrier placed two undercover agents on the job,~working as Laborers on the Rail Gang

 Case No. 7
 Award No. 7

                                  Award No. 7


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On July 27, 1987, as a result of this undercover activity, Carrier preferred charges against four employes (Claimants) and D. Gibson. They ore re charged as follows:

      You are hereby notified to report to the Division Engineer's Office, 1st Floor, 01d Administration Building, Foot of Wood Street, Bellevue Ohio at 9:00 a.m., Friday July 31, 1981, for a formal investigation to determine your responsibility in connection with your use of narcotics while on duty and on company property during the week of July 20 to July 24, 1981, in the vicinity of Eaton and iMuncia, Indiana.

If you desire to have a representative and/or witnesses present at this formal invest.iation, please arrange for their presence. The hearth!; in the matter was held on August 14, 1981, and continued and completed on August 28, 1;81. Claimants were found guilty as charged and discipline was imposed. Stark and Buckley were dismissed from service, while Claimant Esposito was assessed a 90-day suspension. The Orn.anizaLion contends that the char.ces were vague and unclear and that, as snch, they were not specific enough for Claimants to mount a proper defense. Petitioner also argues that the hearin, was procedurally flawed because two hearing officers were involved. it Further claims that Lhe burden of prouf was not met by Carrier and iL was noL proven on the record that Claimants were guilty as charged. It Finally states that even if the charges were true, Ch:: penallirs imposed were much more severe than justice would require. Carrier contends that two undercover agents actually observed
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                                            Case No. 7

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          Claimants on company property. In the case of Stark and Buckley, he saw them smoking marijuana while on duty. The agents identified the marijuana by sight and by smell. It further contends that the two agents were Carrier Police assigned to the detail and would have absolutely nothing to gain by fabricating such stories. The evidence in this case, according to Carrier supports it_ actions and the claim should be denied in .IBS entirety.

          This Board has carefully reviewed the hearing transcript and other material that is a part of Lhe record of this case. We have concluded that Claimants were afforded a full and fair hearing and that they were sufficiently aware of the charges against them to mount an adequate defense. This Board has also concluded that the testimony of the undercover Police was appropriate and that Carrier's Hearing Officer had a perfucL ri;fit Lo rely on it.

          Thu aoard is also pc·rauaded that given Lhe apparent lack of control of tile activities of the men on the R-2 Gang, the penalties imposed on the th_-ee Claimants in this case were far more severe than may have- been nc·cuasurv for f:irrier to make its au in L. wish the men in R-2. In fact, tile record rcvcals that Carrier was willin; on April 27, 1·182, to settle this dispute and return SLarl< :end Buckley to service on a leniency basis. While Lhis Board does not consider that offer of len.icncy an udmission by Lhe Carrier LhaL *1L was wrong in taking Llu· o-i;;inal au-lion, it does serve Lo sil-nal the

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                    . Case No. 7


                                  Award No. 7


Board that perhaps the point has been made wLth Buckley and Stark. It is hoped that they could return to work and become worthwhile empl,oyes.
 Claimants had an Opportunity to return to work in April 1902. They chose not to do so. They made that choice at their own peril. The best this Board can ·lo. bust! on the record before it, is .ive Claimants ~t second opportunity to return to work:. We will therefore direct that Claiiaant:; ')·.· reinstated Lo their i.'ormer positions with no loss ·)f seniority but %%-ith no back pay for Lost lime or benefits.
 As for Claimant ;:SposlLO, this l;oard is not persuaded that the undercover L=ents` testimony concernini_:sposito Is accurate. There is considerable contradictory testimony concornin;; Lhe locaLi.on of Esposito when it is alleged by the a~enL that the marijuana ci;arette was passed around and smok_-d o,^. July 22nd at about :5:00 i'.I. The weight of the testimony on this point does not support a finding :)C -Oui1L on the part of I:sposito. This Board will. therefor- susLain the Esposito claim.
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 Case No. 7
 Award No. 7

 ANAL; D
Claimants Buckley and Stark shall be returned to service :with seniority intact but with no pay for lost time or benefits.

 The Esposito'claim is sustained. He shall be made whole for all lost time and benefits in accordance :with Article 22(e) of the Agreement. Carrier shall implement these
 -awards within 30 days of the date this Board signs the award.

 R: i::. Dennis, Neutral Member

 S. C. Lyons, : rr..ier mTbc:r ~ ~p fl. (;. Harper, nmr,l >y:: Member

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